39 S.C. 446 | S.C. | 1893
The opinion of the court was delivered by
This is the third appeal in this case, the first having been reported in 33 S. C., 175, and the second in 35 S. C., 146, where the general nature of the case and of the facts may be found. It is only necessary now to state generally that the object of the action was to require
In pursuance of this direction from the Supreme Court, the Circuit Court ordered a writ of partition to issue, expressly requiring that “the clerk shall insert in the writ a special direction to the commissioners that they must, if the same be practicable, other things being equal, partition the said lands so that the railroad bed and right of way of the railroad company shall lie upon the- part (if any) assigned to Mrs. Leech; and if not the entire railroad bed and right of way, then as much thereof as the commissioners shall find it practicable, other things being equal, to include upon the lands (if any) assigned to Mrs. Leech.” From this order the second appeal above referred to was taken; not, however, upon grounds, affecting the present inquiry, but simply as to the mode of selecting the commissioners. The result of that appeal was to affirm the order from which the foregoing quotation has been made.
After the said order for partition thus affirmed had been made, and before it was executed, Mrs. M. Elizabeth Leech departed this life intestate, leaving as her heirs at law her children, being all of the other defendants in this case, except the guardian ad litem, J. Edward Leech. Thereupon the plaintiff, having first obtained leave of the court for that purpose, filed its supplemental complaint, setting forth the death of Mrs. M. E. Leech, leaving as her heirs at law her children above stated; that her undivided interest in the said land, bur
To this supplementary complaint the defendants answered, denying each and every allegation therein; but at the hearing below all of these allegations, as stated by his honor, Judge Wallace, in his decree, were admitted. In that decree the Circuit Judge, after stating that since the death of Mrs. Leech, “the plaintiff contends that the issuing of the writ in partition, heretofore ordered, has now become impossible, and that the special proceedings of the minor defendants for damages should be perpetually enjoined,” rendered judgment as follows: “I cannot sustain the bill in its present shape; and the writ being-now waived by the plaintiff, it is adjudged that the complaint and supplemental complaint be dismissed, with costs, and that the temporary injunction heretofore granted against the special proceedings for damages, be and the same is hereby vacated.” From this judgment plaintiff appeals upon the several grounds set out in the record.
There can be no doubt that the court in its former decisions proceeded upon the principle that justice and equity required that the burden of the easement which Mrs. Leech had granted to the plaintiff over her undivided and unascertained portion of the land-, should be placed upon that portion of the land which should be subsequently ascertained to be hers in severalty, provided it was practicable to do so without prejudice to the rights and interests of the other cotenants. It is upon this principle that the court has frequently held that when one tenant in common has put improvements upon the common property, while he is not entitled to compensation for such improvements, yet when partition comes to be made, it shall be so made as to allot to the improving tenant the part which he has improved, if the same can be done without prejudice to the interests of his cotenants. Scaife v. Thomson, 15 S. C., 337, besides many other cases. It seems to us that this principle should work both ways; and where a tenant in common has undertaken to place a burden upon the common property, partition should be, if practicable, so made as to allot to such tenant in common the portion upon which the burden has been placed. See Young v. Edwards, 33 S. C., 404. This being so, it follows that if partition had been made before the death of Mrs. Leech, and if it had proved practicable to so make the partition as to throw the right of way upon the share of Mrs. Leech, and slip had then died, her heirs at law would take her
Apply these well settled principles to the facts of the case as now presented. While it is true that the defendants are now entitled to the whole of the land, yet it must be remembered that their title to the whole is not derived from the same source. They hold their original two-thirds as the heirs at law of their father, while their right to the remaining one-third is derived from their mother as her heirs at law, and, of course, they must take such right subject to any burden which she may have placed upon it. And as the court has heretofore determined that the mother’s share should, if practicable, be so laid off as to include the right of way, it seems to us that, following the theory upon which the court has heretofore proceeded in this case, the defendants must take the share of the mother burdened with the easement which she had placed upon it. While it is true that, under the facts as now presented, i,t would be impracticable to make the partition originally ordered, and, therefore, impracticable to determine whether such partition could be so made as to throw the right of way upon the share allotted to Mrs. Leech, without prejudice to the rights of the other cotenants, yet it is obvious that the practical result intended by the court may be reached even under the changed state of the facts. That result manifestly was to relieve the plaintiff from liability for damages by. throwing the right of way, if practicable and with due regard to the rights of the other cotenants, upon the share to be allotted to Mrs. Leech, so that she, and others claiming under her, would take such share burdened with the easement which she had placed upon it.
Since then the defendants have become the owners of the whole of the laud, and the partition as originally contemplated cannot now be made; and siiice it is manifest that the right of way can now be thrown entirely upon the share to which Mrs. Leech would have been entitled if she were still living, without any detriment to the rights of the other cotenants, as they are
The judgment of this court is, that the judgment of the Circuit Court be reversed and that the case be remanded to that court, with instructions to grant the perpetual injunction, as prayed for in the supplementary complaint.